Moral agency in Judaism

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Moral agency in Judaism is somewhat different to its treatment in other cultural spheres. As in many cultures and nations, minors and the insane (Hebrew: shoteh) were not regarded as being responsible for their actions.[1] However, in Judaism, the definition of a minor - somone who has not reached the Jewish age of majority - included people in their 20s and early 30s, if they had no visible sign of puberty at age 20;[2] conversely, a child ceased being a minor at age 12 (if female) or 13 (if male), as long as they had signs of puberty at this age.[2] As in many legal systems, insanity has a somewhat nuanced definition; in classical Judaism, insane, as far as it concerns questions of moral agency, refers to confirmed maniacs,[1] people with severe mental retardation, if they show signs of derangement (such as inexplicably destroying their clothes, or persistently putting themselves in unnecessary danger),[1] and people sufficiently intoxicated that they are likely to suffer loss of consciousness.[3]

According to the Talmud, if a person's insanity is only temporary (as, for example, with intoxication), they should be regarded as having moral agency during the periods in which they are lucid.[4]

Classical Judaism required that all testimony be given verbally; the mute therefore were not permitted to give testimony.[5] Correspondingly, witnesses were required to be able to hear, and so the deaf were not permitted to act as witnesses.[5]Deaf-mutes (Hebrew:heresh) - people who are both deaf and mute - were regarded as having no moral agency at all, as far as ritual and law were concerned;[5] except, that is, for testimony which would release a chained woman from her marriage.[5] The insane and minors were also forbidden, by the Talmud, from acting as witnesses.[1][6][7]

Contents

Oaths and rituals

In the middle ages, prominent rabbis argued that, like testimony, an oath made by a deaf-mute was invalid;[8][9] this was despite some of these rabbis allowing (non-deaf) mutes to take an oath by writing it out, and signing their consent.[9].

The Talmud does not permit deaf-mutes, minors, or the insane to slaughter animals.[10] However, the Talmud goes on to remark that if a sane adult, able to speak or hear, had supervised the slaughter, then it would be valid under Jewish law, and the meat could legally be eaten.[10] In the Middle Ages, it was argued that non-mute deaf should also be prohibited from slaughter, despite it being permissible to eat the meat resulting from such slaughter, whether the slaughter was supervised or not.[11][12]

Punishment

Deaf-mutes, not being able to give oath or testimony, were absolved by the classical rabbis from all responsibility for any harm they might commit;[5] a deaf-mute could even commit murder with impunity, as far as rabbinic courts were concerned.[5] The insane, too, were not to be held liable by the courts for their actions,[1] and similarly it was argued that minors could not be punished for any ritual or criminal transgressions.[2]

Business

As for business transactions, neither deaf-mutes, nor the (non-mute) deaf, nor minors, were permitted by Jewish tradition to buy or sell real estate.[5] However, deaf-mutes and the (non-mute) deaf were permitted, by the Talmud, to buy and sell moveable goods, as long as they could convince a rabbinic court that they understood the transaction in question;[13][14] similarly, the classical rabbis allowed minors to dispose of moveable property, if they were older than 6 years, and understood the transaction.[13][15]

Nevertheless, the deaf-mute, the insane, and minors were, in the view of the Talmud, not able to acquire ownership of anything they found.[16] Anyone else could legally take such items from people in these categories;[5] though, for the sake of peace, the Talmudic rabbis classified such action as a kind ofrobbery.[16][5]

Marriage

In the bible, marriage is treated as if it were an act of purchase.[17][18] It was thus seen in Jewish tradition as a civil transaction, and therefore as requiring the consent of the contracting parties;[19] in the Bible, these were the groom and the bride's father,[17][18] but in later Jewish tradition it came to be seen as an arrangement between the bride and groom.

Thus, the lack of moral agency afforded to the insane meant that Jewish tradition forbade them from getting married.[1] Furthermore, deaf-mutes were regarded by the Talmudic rabbis as being prohibited by the Bible from marrying,[5] although the rabbis permitted such marriages when they were undertaken using some form of sign language;[19] since such marriages were forbidden by the Bible, they were not regarded as having as much validity as normal marriages, leading to a number of complications.[5]

With regard to minors, the earliest point at which a male was permitted to become betrothed (Hebrew: erusin) is the Jewish age of majority.[20] A bride's consent to her own marriage is not explicitly required by any biblical law,[18] and so girls could be betrothed and married (Hebrew: nissu'in) from the age of just 3;[2] the low marriageable age in Judaism for girls historically lead to a high number of Jewish child marriages.[21] In some circumstances, a child bride could annul her marriage (Hebrew:mi'un); however, distaste for such annulment led, in the Middle Ages, to rabbinic attempts to outlaw child marriage altogether.[22]

Divorce and re-marriage

Male deaf-mutes were allowed, by Jewish tradition, to divorce their wives by use of some form of sign-language, as long as the deaf-mute has answered at least three questions about the divorce, in a way suggesting that the deaf-mute understood the divorce transaction;[5] at least one of these questions had to require a positive answer (such as yes), and at least one had to require a negative answer (such as no).[5] When the wife of a deaf-mute was divorced, it was traditional for rabbinic courts to give her a written record of the method of divorce, in addition to the the usual divorce documents.[5]

However, if the husband had not been a deaf-mute when the marriage began, it was the opinion of most prominent Jewish rabbis that the divorce should be forbidden.[5] Though the Talmud also forbids a man from divorcing his wife while he is is insane,[23] it interprets the Bible as allowing an insane bride to be divorced, on the basis that a man has the power to divorce his wife for any reason.[1][24] Nevertheless, the Talmud, on humanitarian grounds, still forbids the divorce of an insane woman, lest she be left at the mercy of lustful scoundrels and rogues.[25].

Polygyny, which had been the biblical practice,[17] was unfashionable and discouraged during the classical era, except that it was considered acceptable for the husband of an insane wife to marry another woman (without divorcing the insane wife).[1] However, in the Middle Ages, prominent rabbis tried to heavily obstruct any attempt by such husbands to remarry; for example, these rabbis insisted that such remarriage should be forbidden unless at least 100 rabbis, from at least three different countries, had first signed their consent to the remarriage of the man in question.[26]